Left On The Cutting Room Floor: Two Failed Efforts To Change The American Judiciary's Constitutional Form and Function

Left on the Cutting Room Floor:
Two Failed Efforts to Change the American Judiciary’s Constitutional Form and Function
By: Zachary Werrell

23 Dec. 2021
Constitutional Law II: Origins
I. Introduction.
On the journey from the earliest conceptualizations of an American national
government to Ratification of the Constitution and subsequent amendments, the
American Constitution has synthesized a vast array of principles, doctrines, and
structures into one. From the familiar principle of separation of powers, or
structural tripartite framework of the federal government, to more obscure
doctrines better enumerated in countless learned works—our Federal Constitution
embodies a variety of disparate ideas in a unified and coherent manner.
Along this journey of creation, though, an equally vast and disparate array of
ideas were rejected for inclusion into the Constitution—whether due to
compromises, substitutions, or even flat-out losing on a vote at the convention.
These rejected ideas, left flittering to the floor as the final Constitution took shape,
ignite the imagination of any curious modern reader of our Constitution’s history.
Studying these rejected concepts lend itself easily to speculative history, series of
what ifs, and thought experiments—how different our Constitution could have
looked, how dissimilar the United States would function today. Though studying
these rejected proposals will not directly inform the meaning of the constitution,
studying the reasons why these ideas were rejected can shed light on the ideas that
were ultimately included and America’s constitutional order.
1
Specifically, this paper will focus on two concepts that enjoyed significant
traction during the founding era, but ultimately were not included into the
Constitution: the Council of Revision and removal of Federal judges by Congress
and the President. Section II will present the history and theory behind the Council
of Revision proposed by James Madison at the Constitutional Convention with the
Virginia Plan. Section III will chronicle the theories behind, and various attempts to
make Federal judges subject to removal by Congress and or the President. Section
IV will conclude with meditations on the subject.
II. The Counsel of Revision.

Amongst the various items included in the Virginia Plan introduced to the
Constitutional Convention, Proposal Eight called for the creation of Council of
Revision, a body composed of a mix of the national executive and judicial officers,
empowered to negative bills passed by both the National Legislature and the state
legislatures, subject to override by the Congress. This provision of the Virginia plan
ultimately failed by a narrow margin at Convention despite spirited debate.
Section A will introduce Proposal Eight of the Virginia Plan which first
proposed the Counsel of Revision. Section B will trace the historical and theoretical
history behind the Counsel of Revision. Section C will detail the debates over
Proposal Eight at the Constitutional Convention. Second D will detail the demise of
the Proposal and later reflections on the results of its rejection.
A. Proposal Eight of the Virginia Plan.

The uncertainty surrounding the Constitutional Convention was dwarfed
only by the anxieties of the delegates making their way to Philadelphia. The
2
Convention was called under the auspices of amending the Articles of
Confederation—the initial national governmental structure operating during the
Revolution and subsequently thereafter. Though the Convention almost
immediately embraced scrapping the Articles of Confederation and replacing it with
a new national Constitution, the delegates to the convention gathered intending to
fix the Articles. They brought—amongst others—structural, legal, and functional
complaints of deficiencies in the Articles and some notions of how to remedy them.
None of the delegates to the Constitutional Convention came with an articulated,
comprehensive plan for a new constitution to replace—save James Madison.1
Shortly before the commencement of the proceedings, Madison sought to beat the
other delegates to the punch and laid out what would become known as the Virginia
Plan.
The Virginia Plan called for much of what is found in our current
Constitution and laid the necessary foundation for much of the rest. It proposed
many of the innovations found in our current Constitution: a bicameral
legislature—one elected by the people directly, a distinct and separate executive, the
three distinct branches of government; the list goes on. But not everything proposed
in the Virginia Plan was adopted at the Constitutional Convention.
Proposal Eight of James Madison’s Virginia Plan is one such rejected
proposal. It called for the creation of a Counsel of Revision; a quasi-Judicial body
with the power to declare bills in any legislature—State or Federal—null subject to
a Congressional override.
1
Our Unconventional Founding, 62 U. CHI. L. REV. 475, 507.
3
Though seemingly alien to most modern constitutional students, Proposal
Eight of the Virginia Plan was not just something Madison came up with on the fly
that morning before the convention. No—Madison’s Council of Revision was drawn
directly from long and rich traditions in English and American law; and was itself
firmly grounded in constitutional theory. Thus, before detailing Proposal Eight’s
fate at the Constitutional Convention, Section B will detail the historical and
theoretical origins of the Counsel of Revision.
B. Theoretical and Historical Origins of The Council of Revision.

The Counsel of Revision as proposed by Madison in the Virginia Plan was
based firmly in both English jurisprudence and Revolutionary American practice, as
well as being derived from well-founded constitutional theory in its own right.
1. In English Law.
One key inspiration for Madison’s Council of Revision was the English Privy
Council. By the time of the American Revolution, this Council had become an
institution in England and the British Empire. Early English Kings relied on a
council of wise men to assist in the administration of the Kingdom.2 These so-called
witan would help the King declare the law, and after the Norman invasion, would
come to compose the King’s Court.3 The King’s Court performed the executive,
judicial, and legislative functions; and it was from this Court that common law
courts and the Privy Council would emerge.4 Primarily used to implement the
King’s will, the Privy Council was generally a tool of the English Monarchy to
2
COMMENT: The Council of Revision and the Limits of Judicial Power., 56 U. CHI.
L. REV. 235, 237 (“Limits of Judicial Power”).
3
Id.
4
Id.
4
ensure the executive, judicial, and legislative were working in concert. By the
Seventeenth Century, the Privy Council would come to exist as a quasi-judicial body
with a hand in the legislative and executive functions within the Kingdom.5 The
Council had the power to withhold its consent to legislation on the King’s behalf,
and oversaw much of the judiciary.6
Meanwhile, the Parliament in England had begun to grow in both its
legitimacy and influence in English law with respect to the Crown. Much of this
gain by the Parliament would come at the Privy Council’s expense, especially within
England proper. During the English Civil War with the Act of 1640, the Parliament
stripped the Privy Council of its judicial power in England, relegating the Privy
Council to a largely powerless role with respect to Parliamentary legislation.7
Nonetheless, the Privy Council remained influential and consequential
throughout the rest of the Empire’s Territories. The Act of 1640 had only rendered
the Privy Council impotent in England, and thus, as the Empire grew in size,
complexity, and scale, so too did the influence of the Privy Council.8 One need not
scour the far-flung corners of the English Empire to see this increase in eminence of
the Privy Council; simply looking across the Irish Sea would reveal the Privy
Council’s tremendous power. Sir William Blackstone described the power the Privy
Council had in Ireland’s lawmaking:
The method made use of in Ireland, as stated by sir Edward Coke, of

making statutes in their parliaments, according to Poynings' law, of
5
Id.
6
Id.
7
Id., at 238.
8
Id.
5
which hereafter, is this: 1. The lord lieutenant and council of Ireland
must certify to the king under the great seal of Ireland the acts
proposed to be passed. 2. The king and council of England are to
consider, approve, alter, or reject the said acts; and certify them back
again under the great seal of England. And then, 3. They are to be
proposed, received, or rejected in the parliament of Ireland. By this
means nothing was left to the parliament in Ireland, but a bare
negative or power of rejecting, not of proposing, any law. But the usage
now is, that bills are often framed in either house of parliament under
the denomination of heads for a bill or bills; and in that shape they are
offered to the consideration of the lord lieutenant and privy council,
who then reject them at pleasure, without transmitting them to
England.9
Not only did the Privy Council have the power to negative legislation, they
were even empowered to alter it. Moreover, the Privy Council did all this on behalf
of the Crown, but never even had to transmit the considerations to the
Crown—their decision was final and determinative on the issue.
The American Colonies’ experience with the Privy Council was similar to the
Irish; though it followed different contours. In 1696, to manage the increasingly
complex and demanding task of reviewing and adjudicating Empire-wide
legislation, the Privy Council enacted a system of legislative review, delegating the
first inquiry into legislation to the Board of Trade.10 The Board could recommend
legislation it found defective to the Privy Council for disallowance, and, should the
Privy Council agree with the Board, the act would become null and void.11
The Privy Council not only possessed this power to negative colonial
legislatures in theory—it exerted this power with regularity in the American

9
1 William Blackstone, Commentaries on the Laws of England, at 100. (Emphasis
added.).
10
Irving Kauffman, The Essence of Judicial Independence, 80 COL. L. REV. 671–701,
679.
11
Id.
6
Colonies. In one controversy arising in colonial Georgia, the Georgia Assembly
passed legislation which would quiet title in certain disputed lands in favor of one
group of claimants over another. The Privy Council did not mince words explaining
the reasons for nullifying the act, calling it “arbitrary, irregular and unjust, and
Subversive of those established Principles of the Constitution.”12
Thus, prior to the American Revolution, the American colonists had become
quite familiar with the workings of that quasi-judicial body called the Privy Council,
empowered to revise or annul their colonial legislation. Though easy to imagine that
the colonists would have developed a strong aversion to the Privy Council and its
intermeddling in their affairs, such was not the case.
2. New York’s Council of Revision.

Shortly after the inauguration of the Revolutionary War, New York adopted a
new state constitution—which included a provision creating what would come to be
known as the Council of Revision.13 Like the King’s Privy Council, New York’s
Council of Revision had the power to interject before bills passed by the New York
legislature became law.14 Unlike the Privy Council, which had developed its role
over a long tumultuous history, the New York Council of Revision was a novel
solution to two familiar problems: checking the legislature and keeping too much
power out of one man’s hand.
As enacted, Section III of the New York Constitution read:
And whereas laws inconsistent with the spirit of this constitution, or

with the public good, may be hastily passed: Be it ordained that the
12
Id.
13
Limits of Judicial Power, at 243.
14
Id.
7
governor for the time being, the chancellor, and the judges of the
supreme court, or any two of them, together with the governor, shall be
and hereby are, constituted as a council to revise all bills to be passed
into laws by the legislature. . . .15
In essence, the New York’s Council of Revision is a novel variation of the
traditional veto power. Instead of simply investing the veto power with the
Governor, the New York Constitution required the Governor be joined by judicial
officers from New York’s highest courts of equity and law in revising—though not
striking down—legislation. In effect, the New York Constitution divested the
Executive of sole authority to veto legislation, and required the power be shared
with the highest judicial officers in the state. Though eventually abolished in 1821,
during its nearly-44-year existence New York’s Council of Revision carried out its
call to great effect and did so without overreaching or causing constitutional crises.
In those 44 years, the Council sent just 169 bills of the legislature back for
reconsideration, with the legislature overriding the council and repassing
51—adopting 26 with various degrees of modification.16
The New York Council of Revision often sent comments back with their
rejected bills, and often, though not always, invoked constitutional reasons for doing
so. Rather straightforwardly, the Council would reject bills using familiar
constitutional reasoning—declaring the bill rejected as “inconsistent with the Spirit
of the Constitution.”17 Other rejections came on procedural grounds, with the

15
Ben Penley Poore, 2 The Federal and State Constitutions, Colonial Charters, and
Other Organic Laws of the United States 1328 (GPO, 2d ed 1878).
16
Frank M. Prescott and Joseph F. Zimmerman, The Council of Revision and the
Veto of Legislation in New York State: 1777-1821 2 (SUNY Albany, Graduate School
of Public Affairs, 1972).
17
8
Council of Revision rejecting one bill because “the persons affected thereby hav[ing]
an opportunity of being heard.”18 Sometimes, the Council of Revision would offer
simple, vague reasons for rejecting a bill, with one being rejected simply for being
“inconsistent with the public good.”19 Thus, in practice, New York’s Council of
revision had not only served as a constitutional check on the legislature, but had
also exerted its powers to advance procedural and policy goals.
New York’s Council of Revision, despite its peculiarity and novel blend of the
executive and judicial, earned a strong reputation in the Colonies for its
performance. Alexander Hamilton professed his admiration for New York’s Privy
Council and its general reputation in Federalist 73:
This qualified negative, as has been elsewhere remarked, is in this

State vested in a council, consisting of the governor, with the
chancellor and judges of the Supreme Court, or any two of them. It has
been freely employed upon a variety of occasions, and frequently with
success. And its utility has become so apparent, that persons who, in
compiling the Constitution, were violent opposers of it, have from
experience become its declared admirers.20
James Madison was well aware of New York’s Council of Revision21, as well as
the Privy Council, but did not only draw from practical experience and history in
developing Proposal Eight’s Council of Revision. Despite posing a potential
departure from the strictures of separation of powers, the Council of Revision as
proposed by James Madison drew from a deep well of constitutional theory.
18
Id.
19
Id., at 246.
20
The Federalist No. 73, at 446 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
21
9
3. Support for the Council of Revision in Constitutional
Theory.
Both the Privy Council and New York’s Council of Revision Councils were
composed of a mixture of the judicial and executive, and were empowered to
intercede in the promulgation of legislation. Additionally, the same judicial officers
making up the Council and having input on the passage of bills would subsequently
have the power of judicial review over legislative acts.22 To some thinkers, bodies
such as the Privy Council or New York’s Council of revision, composed of a blend of
executive and judicial, with the power to interject in legislation, violated
fundamental constitutional theory—the complete and impregnable separation of
powers between political branches.23
Montesquieu’s Spirit of the Laws was not the first articulation of the concept
of separation of powers, but it was the most influential articulation of the principle
in the English speaking world at the time. This was partially an accident of
historical timing—Spirit of the Laws was published in the decades prior to the
American Revolution, and thus was a timely work on an important subject.
Montesquieu studied the various forms of governmental organization, and
specifically focused on what divided despotism, monarchy, and democracy
Despotism, according to Montesquieu, sees that the “immense power of the prince is
devolved intirely upon those whom he is pleased to intrust with the administration.
Persons, capable of setting a value upon themselves, would be likely to create
22
Id., at 249.
23
10
disturbances. Fear must, therefore, depress their spirits, and extinguish even the
least sense of ambition.”24
But to Montesquieu, despotism and monarchy are not one in the same.
Monarchy merely speaks to the condition of having an embodied sovereign, but
having an embodied sovereign did not necessarily result in despotism. “The whole
difference is, that, in a monarchy, the prince receives instruction, at the same time
that his ministers have greater abilities, and are more versed in public affairs, than
the ministers of a despotic government.”25
Despotic government then, according to Montesquieu, arises when the
sovereign or some voice within the government stands above and outside
constraints of the machinery of government. The despot commands the entire
machinery of the government according to his will, whereas the monarch exists
within and subject to constraints imposed by empowered ministers. When one voice
is capable of commanding the entire machinery of government, despotism arises.
Hence, separating powers between branches was essential to preclude the
development of despotism. By separating powers, the various branches of
government would be capable of resisting such despotism individually, and by
collective action.
Montesquieu did not have a monopoly on theoretical conceptualizations of the
separation of powers however. Blackstone strongly extolled the virtues of a strong
separation of powers—specifically with respect to the judicial department.
24
I Montesquieu, Spirit of the Laws, b. III. ch. 9 (1748).
25
I Montesquieu, Spirit of the Laws, b. III. ch. 10 (1748).
11
In this distinct and separate existence of the judicial power, in a
peculiar body of men, nominated indeed, but not removable at
pleasure, by the crown, consists one main preservative of the public
liberty; which cannot subsist long in any state, unless the
administration of common justice be in some degree separated both
from the legislative and also from the executive power. Were it joined
with the legislative, the life, liberty, and property, of the subject would
be in the hands of arbitrary judges, whose decisions would be then
regulated only by their own opinions, and not by any fundamental
principles of law; which, though legislators may depart from, yet
judges are bound to observe. Were it joined with the executive, this
union might soon be an overballance for the legislative.26
But Blackstone did not believe that separation of powers necessarily meant
the branches would be hermetically sealed off from one another. Blackstone’s
conception of separation of powers extolled the virtues of a complex, interwoven,
and potentially disruptive system of checks and balances between political
branches.27 In Blackstone’s formulation, these interlocking mechanisms between
the branches were necessary to ensure the disparate branches of government
function coherently and in a mutually beneficial manner. Through strategic political
cross-pollination, the separate branches would not devolve into warring factions but
instead harmonize into effective governance.
Thus every branch of our civil polity supports and is supported,

regulates and is regulated, by the rest; for the two houses naturally
drawing in two directions of opposite interest, and the prerogative in
another still different from them both, they mutually keep each other
from exceeding their proper limits; while the whole is prevented from
separation, and artificially connected together by the mixed nature of
the crown, which is a part of the legislative, and the sole executive
magistrate. Like three distinct powers in mechanics, they jointly impel
the machine of government in a direction different from what either,
26
The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 1: Blackstone, William.
Commentaries on the Laws of England: A Facsimile of the First Edition of
1765–1769. Chicago: University of Chicago Press, 1979.
27
Sir William M. Blackstone, 1 Commentaries on the Laws of England, at 48–52.
12
acting by themselves, would have done; but at the same time in a
direction partaking of each, and formed out of all; a direction which
constitutes the true line of the liberty and happiness of the
community.28
This Blackstonian conceptualization of separation of powers—messy and
interwoven—is not inherently mutually exclusive with separation of powers
generally, though many American Founders came to believe that the Blackstonian
articulation was incompatible with Montesque’s call for separation of powers.29
Whether Montesquieu, should he have found himself at the Constitutional
Convention, would have applied his notions of separation of powers as dogmatically
as his American adherents did, or in a more practical, Blackstonian manner is a
discussion outside the scope of this paper. As Section C will develop, however, the
delegates to the Constitutional Convention proceeded to have debates on James
Madison’s Council of Revision along these philosophical lines.
C. The Council of Revision’s Fate at the Constitutional

Convention.
Though James Madison blindsided the delegates to the Constitutional
Convention with the Virginia Plan, Proposal Eight of the Virginia Plan was firmly
rooted in theory and practice familiar to all in attendance. The full text of Proposal
Eight of the Virginia plan read:
Resolved that the Executive and a convenient number of the National

Judiciary, ought to compose a Council of revision with authority to
examine every act of the National Legislature before it shall operate, &
every act of a particular Legislature before a Negative thereon shall be
final; and that the dissent of the said Council shall amount to a
28
Id., at 151.
29
13
rejection, unless the Act of the National Legislature be again passed,
or that of a particular Legislature be again negatived by ______ of the
members of each branch.30
The proposal contains these main components: a body composed of a
combination of the judicial and the executive; empowered to negative all Federal
and state laws prior to enactment; subject to an override by the National
Legislature.
The delegate’s reception of Madison’s Council of Revision would largely come
down to whether they were dogmatic supporters of their conceptualization of
Montesquieu’s absolute separation of powers, or whether they held a more practical,
Blackstonian conceptualization of separation of powers.
1. Arguments Against the Council at Convention.

Opponents to the Council of Revision argued that the Council of Revision
represented an intolerable violation of their interpretation of Montesquieu’s
separation of powers.31 John Dickinson of Pennsylvania forcefully articulated this
position. To Dickinson, the Council of Revision was an “improper mixture of powers”
which would derail the overall constitutional design separating powers between the
branches.32 Similarly, Elbridge Gerry of Connecticut called the Council of Revision
“an improper coalition between the Executive & Judiciary departments.”33 Such
objections are rooted in theories derived from a dogmatic interpretation of
30
Butler, Max Farrand, ed, 1 The Records of the Federal Convention of 1787, 21 note
54 (Yale, 1911).
31
32
Id., at 253–54.
33
Id., at 254.
14
Montesquieu’s separation of powers. Under this conceptualization, any mixture of
any of the branches would be considered “improper.”
Arguments against the Council of Revision did not always arise from
reasoning from first principles. Others made practical arguments against the
Council of Revisions, informed by their understanding of separation of powers.
Gerry further argued that with a veto lodged in the executive, judicial review would
provide “a sufficient check agst. [legislative] encroachments,” making the Council of
Revision’s existence duplicative and unnecessary.34 Similarly, Luther Martin argued
that to give the Council input into legislation while the judiciary empowered with
judicial review would give the judicial system a “double negative” over the
operations of the legislature.35 Moreover, it was argued that having the judicial
branch involved in the passage and interpretation of legislation would
inappropriately prejudice justices reviewing the legislation after just having been
involved in its passage. Nathaniel Gorham of Massachusetts extolled this notion,
"[j]udges ought to carry into the exposition of the laws no prepossessions with
regard to them."36
Others argued that the Council of Revision would give the judicial branch an
inappropriate amount of influence over decisions of national policy, representing
both a theoretical conflict as well as inappropriately exposing the judicial branch to
the whims and dangers of national politics. For many Framers, the judicial branch’s
proper function was deciding disputes between parties—emphatically excluding the

34
Id., at 255.
35
Id.
36
Id., at 254.
15
potential for judicial involvement in questions of national policy.37 According to this
line of thought, only the branches with direct electoral ties to the People were the
proper branches in which to decide national policy disputes. After implementing
national policy, the political officers could be reelected or defeated depending on
their constituent’s impressions of their decisions. The wholly-unelected judicial
branch, however, would be completely precluded from such popular input. Moreover,
because these judges are unelected and thus a step removed from the people, Luther
Martin argued the public confidence in the Judiciary would quickly erode "if
[judges] are employed in the task of remonstrating agst. popular measures of the
Legislature."38
2. Arguments In Favor of the Council at Convention.

Proponents of the Council of Revision, led by James Madison, articulated
their support for the proposal in Blackstonian theoretical terms informed by a
more-nuanced understanding of Montesquieu, as well as voicing support based on
practical considerations in favor of the creation of the Council of Revision.
James Madison believed it was impossible to construct a government in a
dogmatic, theoretical manner—the practical realities involved require creative
solutions and compromises in order to effectuate the whole experiment.39 This view
largely won out at the Constitutional Convention, as theoretical conflicts were
largely subordinated in pragmatic compromises. But for a majority of the delegates
at the Constitutional Convention, the Council of Revision’s theoretical conflicts with
37
Id., at 255.
38
Id.
39
Id., at 242.
16
their interpretation of Montiesquieu’s separation of powers were too much to
overcome.
But James Madison strongly rejected the idea that Montiesquieu stood for
complete and total separation of powers. To Madison, Montiesquieu’s call for
complete separation of powers was not aimed at ensuring that the three branches of
government should have absolutely no influence over the functioning of the other.
Rather, Madison argued, Montesquieu was making a top-down argument—it was
not the involvement of other branches in any other branch’s functions that was
inapposite to good government per se. Rather, the fundamental impetus of
Montesquieu’s separation of powers is preventing one branch from exercising the
powers or discharging the duties of another branch. According to Madison,
Montesquieu’s concern was not the joint action of two branches, or even the
intermingling of functions between the two; but rather the legislative acting as the
judicial or executive, the judicial acting as the legislative or executive, etc.
From these facts by which Montesquieu was guided it may clearly be

inferred, that in saying “there can be no liberty where the legislative
and executive powers are united in the same person, or body of
magistrates,” or “if the power of judging be not separated from the
legislative and executive powers,” he did not mean that these
departments ought to have no partial agency in, or no controul over the
acts of each other. His meaning, as his own words import, and still
more conclusively as illustrated by the example in his eye, can amount
to no more than this, that where the whole power of one department is
exercised by the same hands which possess the whole power of another
department, the fundamental principles of a free constitution, are
subverted.40
40
The Founders’ Constitution, Vol. 1, Chap. 10 (Separation of Powers), Doc. 14:
Hamilton, Alexander; Madison, James; and Jay, John. The Federalist, 323–31.
Edited by Jacob E. Cooke. Middletown, Conn.: Wesleyan University Press, 1961.
17
Such an understanding, according to Madison, was the only way to properly
interpret Montesquieu, especially considering how the model for Montesquieu’s
work—England—functioned in reality.
This would have been the case in the constitution examined by him, if
the King who is the sole executive magistrate, had possessed also the
compleat legislative power, or the supreme administration of justice; or
if the entire legislative body, had possessed the supreme judiciary, or
the supreme executive authority. This however is not among the vices
of that constitution. The magistrate in whom the whole executive
power resides cannot of himself make a law, though he can put a
negative on every law, nor administer justice in person, though he has
the appointment of those who do administer it. The judges can exercise
no executive prerogative, though they are shoots from the executive
stock, nor any legislative function, though they may be advised with by
the legislative councils. The entire legislature, can perform no judiciary
act, though by the joint act of two of its branches, the judges may be
removed from their offices; and though one of its branches is possessed
of the judicial power in the last resort. The entire legislature again can
exercise no executive prerogative, though one of its branches
constitutes the supreme executive magistracy; and another, on the
empeachment of a third, can try and condemn all the subordinate
officers in the executive department.41
Proponents of the Council of Revision also argued that a purely executive
veto would be an insufficient check against the legislature, and that the combined
weight of the judicial and executive branches exercising a check on the legislature
would be both more effective and better promote balance between the branches. At
the Convention, James Wilson argued that a joint executive and judicial veto was
necessary to marshall the full strength of both in battling back an overreaching
legislature.42 Similarly, Madison argued that adding judicial involvement in
exercising the veto would “render [the] Check or negative more respectable.”43 Thus,
41
Id.
42
43
Id.
18
Wilson and Madison argued that including the judicial in the exercise of the veto
power would not only render the check more complete, but that it would also
increase the validity of that check with the People and their elected officials.
Madison offered a second pragmatic argument for the inclusion of the
judiciary in the exercise of the veto—judicial officers are significantly better-versed
in the nuance and intricacy of law and constitutional questions than are legislators.
Instead of merely getting input from the executive by way of the veto, giving the
legislature access to the wisdom of the judicial branch "would be useful to the
Legislature by the valuable assistance it would give in preserving a consistency,
conciseness, perspicuity & technical propriety in the laws."44 Oliver Ellsworth of
Connecticut recognized that the legislative process often involves legal or
constitutional questions, and that “[of] this the Judges alone will have competent
information."45
Finally, Madison argued that having the judiciary have a role in the creation
of bills would be far more convenient and protective of individual rights than
relegating the judiciary to only striking down laws after they had been passed and
brought into operation.
It may be said that the Judicial authority under our new system will
keep the States within their proper limits, and supply the place of a
negative on their laws. The answer is, that it is more convenient to
prevent the passage of a law, than to declare it void after it is passed;
that this will be particularly the case, where the law aggrieves
individuals, who may be unable to support an appeal agst. a State to
the supreme Judiciary; that a State which would violate the
Legislative rights of the Union, would not be very ready to obey a
44
Id., at 250.
45
Id.
19
Judicial decree in support of them, and that a recurrence to force,
which in the event of disobedience would be necessary, is an evil which
the new Constitution meant to exclude as far as possible.46
James Wilson similarly argued the utility of having a Council with
revisionary powers was superior to one only having the power to retroactively annul
legislation. Wilson believed that judges would be less inclined to strike down
legislation after it had passed than to intercede prospectively in ameliorating
constitutional conflicts.
Laws may be unjust, may be unwise, may be dangerous, may be

destructive; and yet not be so unconstitutional as to justify the Judges
in refusing to give them effect. Let them have a share in the
Revisionary power, and they will have an opportunity of taking notice
of these character[istics] of a law, and of counteracting, by the weight
of their opinions the improper views of the Legislature.47
D. Convention Results And Aftermath.

Ultimately, the Council of Revision was rejected multiple times at the
Constitutional Convention. On June 6th 1787, the Convention voted down Proposal
Eight by a eight to three margin.48 Upon reconsideration on July 21st, the
Convention rejected the Proposal again, this time by a four to three vote (with two
delegations divided and thus abstaining).49 Finally, on August 15th, Madison
proposed a final compromise to save the theories embodied in the Council of
Revision, giving both the executive and judicial their own, separate chance to
46
The Founders’ Constitution, Vol. 1, Chap. 17 (Constitutional Government),
Doc. 22: The Papers of James Madison, 10:207–15. Edited by William T. Hutchinson
et al. Chicago and London: University of Chicago Press, 1962–77 (vols. 1–10);
Charlottesville: University Press of Virginia, 1977–(vols. 11–).
47
48
Id., at 257.
49
Id.
20
review legislation, rather than combining the powers in the Council of Review. This
last-ditch effort by Madison failed eight to three.50
And with that final vote, the Council of Revision and its pragmatic
descendents finally died—and the instantiation of judicial review was complete.
Madison continued to lament this failure for decades.
These considerations remind me of the attempts in the Convention to

vest in the Judiciary Dept. a qualified negative on Legislative bills.
Such a Controul, restricted to Constitutional points, besides giving
greater stability & system to the rules of expounding the Instrument,
would have precluded the question of a Judiciary annulment of
Legislative Acts. 51
III. Removal of Federal Judges.

While revolutionary both in structure and precedent, the American
Constitution drew heavily on known lessons learned from the English legal
experience. One such lesson was the need for an independent judiciary—one where
judicial officers did not rely on the will of the King alone for their positions and
authority. Despite totally overthrowing the monarchical legal authority during the
American Revolution, the Framers extended the English legal innovations
providing judicial independence to our Federal judges, and pushed these notions to
their logical extreme: life tenure, removal only for bad behavior, and non-reducable
salaries—all commanded by the Constitution. But this outcome was not assured, as
the debate over adding a constitutional provision allowing the removing of Federal
50
Id.
The Founders’ Constitution, Vol. 4, Art. 3, Sec. 2, Cl. 1, Doc. 70: The Writings of
51
James Madison, 8:406–07. Edited by Gaillard Hunt. 9 vols. New York: G. P.

Putnam’s Sons, 1900–10.
21
judges continued from the opening of the Constitutional Convention for nearly 30
years, finally concluding with a failed Constitutional Amendment in 1811.
Section III will begin in Part 1 by introducing the development of judicial
independence under pre-revolutionary English Law. Part 2 will trace the
implementation of America’s expansive version of judicial
independence—structurally and constitutionally. Part 3 will explore the concerns
voiced about America’s implementation of English judicial independence, with Part
4 chronicling the failed attempts to constitutionally permit the recall of Federal
judges.
A. Development of Judicial Independence in England.

As Mel Brooks once infamously quipped, “it’s good to be the King.” Though
playing the soon-to-be-beheaded King Louis XVI of France and speaking of his
unchecked sexual improprieties with unwilling female subjects, this line brilliantly
understates the absolute and terrifying power European Monarchs wielded
throughout much of history. In such systems, the Monarch is sovereign—all power
flows from and through the crown. The judicial system is no exception.
But as English law developed out of its primordial, Medieval substrate, it
became apparent that the impartial administration of justice was impeded by the
fear of a crown (or potentially a guillotine) floating over the judge’s heads when
rendering decisions—most especially decisions against the King. This reality stood
in direct conflict with the development of English common law’s developing
protection of individual rights, impartiality and consistency of legal decisions, and
22
burgeoning theories of separation of powers. Thus, the English law developed a
number of innovations intended to mute or eliminate these conflicts.
1. Life Tenure, Good Behavior, and Fixed Salaries.

Personal independence for judges in England developed over many centuries
leading into America’s Revolution. Initially coming in the form of small concessions
from the King, English judges would slowly be secured in their independence with
life tenure, during good behavior, and a salary immune from reduction. Though
these protections never became ubiquitous and uniform for all judicial positions in
England, they represented tremendous innovations advancing the impartiality of
justice. As Alexander Hamilton proclaimed, “[t]he standard of good behaviour for
the continuance in office of the judicial magistracy is certainly one of the most
valuable of the modern improvements in the practice of government.”52
To understand why Alexander Hamilton (and many other Framers) believed
these innovations promoting judicial independence in such high regard, one must
understand the development of this standard in England: the conflicts which
created the need, the gravity of the need itself, and how well judicial independence
ameliorated that need.
Joseph Story brilliantly expounded the initial conditions giving rise to the
need to create judicial independence in England. There, “the king is considered, as
the fountain of justice; not indeed as the author, but as the distributer of it; and he
possesses the exclusive prerogative of erecting courts of judicature, and appointing
52
The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 11: Hamilton,
Alexander; Madison, James; and Jay, John. The Federalist, 521–30. Edited by Jacob
E. Cooke. Middletown, Conn.: Wesleyan University Press, 1961.
23
the judges.”53 Headed by a hereditary monarch, English government and legal
systems were designed and developed around the Monarch’s authority. The judicial
system is no exception.
In antiquity, the King was the judicial system. But as history progressed, it
became increasingly difficult and eventually impossible for the King to hear cases.54
To effectuate the administration of justice, the King needed to at least empower
subordinates to hear and try cases, eventually leading to the devolution of the
judicial power from the King to the courts.
Indeed, in early times, the kings of England often in person heard and
decided causes between party and party. But as the constitution of
government became more settled, the whole judicial power was
delegated to the judges of the several courts of justice; and any
attempt, on the part of the king, now to exercise it in person, would be
deemed an usurpation.55
Simply establishing a court system, however, does nothing to actually ensure
that justice is impartially administered throughout a Kingdom. Courts require
judges, and so naturally enough the King would appoint officers to serve in that
role. But, at this stage of England’s historical development, a King with the power
to appoint was a King with the power to remove. This reality created untoward
pressures on judicial officers.
It is certain, that this power of the crown must have produced an

influence upon the administration, dangerous to private rights, and
subversive of the public liberties of the subjects. In political
accusations, in an especial manner, it must often have produced the
53
The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 38: Story, Joseph.
Commentaries on the Constitution of the United States. 3 vols. Boston, 1833. (“Story,
Commentaries on the Constitution”).
54
Id.
55
Id.
24
most disgraceful compliances with the wishes of the crown; and the
most humiliating surrenders of the rights of the accused.56
Historically, all judicial officers served at the pleasure of the crown, during a
tenure of the crown’s choosing. “Anciently, the English judges held their offices
according to the tenure of their commissions, as prescribed by the crown, which was
generally during the pleasure of the crown, as is the tenure of office of the Lord
Chancellor, the judges of the courts of admiralty, and others, down to the present
day.”57
As Joseph Story chronicles, however, by the late 1500’s, England began to
shield some judicial officers from the pernicious influence of the Crown by
implementing an objective standard for continuation in judicial office. This
standard is tenure in office during good behavior. As opposed to the first standard,
service at the pleasure of the crown, permitting some judges to serve during good
behavior prevented those judges from being coerced or threatened by the Crown
arbitrarily. This standard was expanded over time. “In the time of Lord Coke, the
Barons of the Exchequer held their offices during good behaviour, while the judges
of the other courts of common law held them only during pleasure. And . . . [during]
restoration of Charles the Second, the commissions of the judges were during good
behaviour.”58
This innovation in English law—the standard of good behavior—began to
take hold during a tumultuous and consequential period in English History. As the
56
Id.
57
Id.
58
Id.
25
Sixteenth Century ended and the Seventeenth Century began, England found itself
in political turmoil—civil war, religious struggles, succession crises, and
revolution.59 Underlying most of the instability was the struggle between the
Monarchy and an increasingly-powerful Parliament for primacy in the English legal
order.60 Ultimately, with the Glorious Revolution of 1688 and the Bill of Rights 1689,
Parliament secured its dominance over the Monarchy in the English System.61
Newly emboldened and empowered, the Parliament began to assert its dominance
and circumscribe or limit the Monarch’s power in a variety of spheres.
One major Parliamentary advance was The Act of Settlement of 1701, passed
to ameliorate a succession crisis and install Sophia of Hanover as Monarch (to
dethrone Charles I’s line).62 Importantly, too, the Act included a significant change
to the Monarch’s power over the removal of judges sitting in common law courts.
The Settlement officially eliminated the previous standard, durante bene placito
(pleasure of the crown) and replaced it with quam diu bene se gesserint (good
behavior).63 The Parliament did not completely divest the Monarch of all power to
remove all judges, however, as they could still be removed, “by the king, upon the
address of both houses of parliament; and their offices expired by the demise of the
king.”64
59
Martha Andes Ziskind, Judicial Tenure in the American Constitution: English and
American Precedents, The Supreme Court Review, Vol. 1969 135-154, 137. The
University of Chicago Press, 1969 (“Judicial Tenure”).
60
Id.
61
Oxford J Legal Studies (1999) 19 (3): 365.
62
Id.
63
Joseph H. Smith, An Independent Judiciary: The Colonial Background, 124 U. PA.
L. REV. 1104 (1976). (“Colonial Background”).
64
Story, Commentaries on the Constitution, at §1602.
26
The English legal experiment with judicial independence was thus underway,
despite only protecting a fraction of judges with tenure during good behavior.
Systemic improvements resulting from this experiment impelled the English to
push forward with other variations on judicial independence. Undoubtedly, job
security certainly helps ensure the impartial administration of justice, but as
Alexander Hamilton said, “a power over a man’s subsistence amounts to a power
over his will.”65 Reforms allowing judges continue to hold their positions would do
little to insulate the judge if the judge is no longer being paid to hold that office.
This reality was not lost on the English.
Eventually, King George III—the King of England during America’s
Revolution—recommended Parliament pass a law requiring that every judge hold
their office during good behavior, including after the death of a Monarch, and to
secure their salaries during their commission. The Parliament obliged. Both the
King of England and Joseph Story extolled the virtue and importance of this act:
Upon that occasion, the monarch made a declaration, worthy of

perpetual remembrance, that “he looked upon the independence and
uprightness of the judges, as essential to the impartial administration
of justice; as one of the best securities of the rights and liberties of his
subjects; and as most conducive to the honour of the crown.” Indeed,
since the independence of the judges has been secured by this
permanent duration of office, the administration of justice has, with a
single exception, flowed on in England, with an uninterrupted, and
pure, and unstained current. It is due to the enlightened tribunals of
that nation to declare, that their learning, integrity, and impartiality,
have commanded the reverence and respect, as well of America, as
Europe.66
65
The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 12: Hamilton, Alexander;
Madison, James; and Jay, John. The Federalist, 531–34. Edited by Jacob E. Cooke.
Middletown, Conn.: Wesleyan University Press, 1961.
66
27
B. Constitutional Independence of Judges in America.
Unfortunately for the American Colonists, despite major concessions to the
Parliament in England, the Monarchy would retain enormous power over the
administration of justice in its possessions overseas. As with the Privy Council,
legal reforms promoting the independence of judges did not spread beyond the
shores of England. In fact, throughout the Colonial Era, England continued with the
practice of keeping judges only at the pleasure of the crown in the
Colonies67—denying Americans the relief resulting from these innovations becoming
increasingly-entrenched in English law.
The American Colonists, who believed themselves to be every bit as English
and imbued with all the same rights as Englishmen, had witnessed these
advancements in judicial independence taking place in England and incredible legal
improvements resulting therefrom. But they were denied the benefits of these
advancements. This disappointment contributed significantly to the Revolutionary
attitudes expressed in the American Colonies, ultimately culminating in the
Declaration of Independence. Thomas Jefferson specifically articulated this
grievance in the document: “He has obstructed the Administration of Justice, by
refusing his Assent to Laws for establishing Judiciary powers.—He has made
Judges dependent on his Will alone, for the tenure of their offices, and the amount
and payment of their salaries.”68
67
The Colonial Background, 124 U. Pa. L. Rev., at 1104 (1976).
68
The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 2.
28
This complaint did not only manifest in the Declaration of Independence
itself. As the American Revolution took course, numerous states adopted
constitutional provisions or made declarations intending to forever instantiate
judicial independence in their jurisdictions. The Maryland Constitution of 1776, for
example, created a constitutional protection for the tenure of judicial officers while
exhibiting good behavior. “That the Chancellor, all Judges, the Attorney- General,
Clerks of the General Court, the Clerks of the County Courts, the Registers of the
Land Office, and the Registers of Wills, shall hold their commissions during good
behaviour, removable only for misbehaviour, on conviction in a Court of law.”69
Delaware similarly pronounced the importance of judicial independence in its 1776
Declaration of Rights, stating, “[t]hat the Independency and Uprightness of Judges
are essential to the impartial Administration of Justice, and a great Security to the
Rights and Liberties of the People.70
Thus, prior to the adoption of the Constitution, States and the Citizens
thereof proclaimed their strong support for an independent judiciary—though such
efforts only constituted internal, intra-state judicial independence. In adopting the
Constitution, however, the Framers would institute a national federal judiciary that
had not only secured the complete personal independence of judges—through life
69
The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 5: Thorpe, Francis
Newton, ed. The Federal and State Constitutions, Colonial Charters, and Other
Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the
United States of America, 3:1697. 7 vols. Washington, D.C.: Government Printing
Office, 1909.
70
The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 3: Sources of Our
Liberties, 340. Edited by Richard L. Perry under the general supervision of John C.
Cooper. [Chicago:] American Bar Foundation, 1952.
29
tenure, good behavior, and fixed salaries—but also the judiciary’s Constitutional
Independence as a whole.
1. Personal Independence: Tenure, Behavior, Salary.

Article III Section 1 of the Constitution commands that Federal judges will
have tenure so long as they maintain good behavior, and shall not have their
salaries diminished.
The Judges, both of the supreme and inferior Courts, shall hold their
Offices during good Behaviour, and shall, at stated Times, receive for
their Services, a Compensation, which shall not be diminished during
their Continuance in Office.71
In so doing, the Framers of the Constitution expanded the English
experiment in personally-secured judicial independence into a judiciary-wide,
constitutional command. The reasons were simple: English history proved that
insulating judges from personal coercion by other elements of the government
radically improves the chances that judges will feel pressure to save their own neck
and will feel secure in handing down just results, regardless of whether others in
power are offended. Article III, Section 1 of the Constitution took this lesson to its
logical extreme, which was not seen in England, as Joseph Story explained:
It is observable, that the constitution has declared, that the judges of

the inferior courts, as well as of the Supreme Court, of the United
States, shall hold their offices during good behaviour. In this respect
there is a marked contrast between the English government and our
own. In England the tenure is exclusively confined to the judges of the
superior courts, and does not (as we have already seen) even embrace all
of these.72
James Wilson flatly articulated the reasoning behind expanding these
protections to all Federal judges. “In their salaries, and in their offices, they ought
71
United States Constitution, Art. III, sec. 1.
72
30
to be completely independent: in other words, they should be removed from the most
distant apprehension of being affected, in their judicial character and capacity, by
any thing, except their own behaviour and its consequences.”73
But should Federal judges display such ‘bad’ behavior, they could be removed
according to the impeachment provisions of Article II, Section 4. “The President,
Vice President and all civil Officers of the United States, shall be removed from
Office on Impeachment for, and Conviction of, Treason, Bribery, or other high
Crimes and Misdemeanors.”74 Though not explicitly including Federal judges by
name, the prevailing understanding of the Convention was that they too would be
subject to this impeachment protocol.75
2. Constitutional, Legal Independence.

Aside from completing the English project by Constitutionally ensuring
personal independence for all Federal judges, the Constitution of the United States
also radically redefined foundational structural precepts of English law by making
the Federal Judiciary its own, independent, coequal branch of government. The
earliest English judiciary initially developed within the King’s executive powe, and
it was not until the creation of the Supreme Court of the United Kingdom in 2009
that the English judiciary would finally become a fully-independent branch of
73
The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 15: The Works of James
Wilson, 1:296–97. Edited by Robert Green McCloskey. 2 vols. Cambridge: Belknap
Press of Harvard University Press, 1967.
74
United States Constitution, Article II, Sec. 4.
75
The Revival of Impeachment as a Partisan Political Weapon, 34 Hastings Const.
L.Q. 161, 172.
31
English government.76 At the time of the Founding, though, the judicial system in
England was largely nested within the Parliament. Outside of England proper,
specifically the American Colonies, the judiciary existed largely within or
subordinate to the King’s Privy Council—a quasi-judicial body with the power to
nullify laws passed by Colonial legislatures—and the local judicial system being
housed within the Colonial Governor’s power.77
But after the American Colonies severed political ties with the crown, the
Framers had a unique opportunity to create a constitutional structure anew—free
from the historical scars, vested interest s, and political realities that gave rise
to the then-existing English legal order. One of the most transformative—and, for
lack of a better word—revolutionary aspects of the American Constitution was the
quite intentional decision to establish a wholly co-equal third branch—the
American Judiciary.
Aside from actualizing Montesquieu's envisioned tripartite
government—judicial, legislative, and executive power divided into branches
accordingly—for successful operation, the Constitution required the Federal
Judiciary be capable of holding its own against the other two branches of
government, and not wither on the vine into constitutional irrelevancy.
Many Framers assumed the Judicial branch to be the weakest of the three
branches by its very nature—and thus had to be fortified and empowered to
76
Constitutional Reform Act 2005 (c. 4), Part 3, Section 23. The National Archives,
United Kingdom (2005).
77
Judicial Tenure, at 138.
32
withstand encroachments from the two more imposing political branches. Alexander
Hamilton’s Federalist 78 is the most famous pronouncements to this effect:
The executive not only dispenses the honors, but holds the sword of the
community. The legislature not only commands the purse, but
prescribes the rules by which the duties and rights of every citizen are
to be regulated. The judiciary on the contrary has no influence over
either the sword or the purse, no direction either of the strength or of the
wealth of the society, and can take no active resolution whatever. It may
truly be said to have neither Force nor Will, but merely judgment; and
must ultimately depend upon the aid of the executive arm even for the
efficacy of its judgments.78
C. Contrary Voices and Rejoinders.

The opponents of complete, constitutional judicial independence made two
general sorts of arguments: first, that the fundamental differences between the
English Monarchy and the American Republic lessened the need for English-style
judicial independence, and second, that practical reasons abound for allowing the
removal of Federal judges outside of the impeachment context.
1. Fundamental Distinctions Between England and

America.
Some felt overthrowing the king and creating a republic in the place of a
monarchy fundamentally transformed the relationship between the branches of
government, and thus the English legal innovations might not be calibrated
appropriately for the newly-founded, kingless Republic. As Brutus began no. 15,
“Though in my opinion the judges ought to hold their offices during good behaviour,
yet I think it is clear, that the reasons in favour of this establishment of the judges
in England, do by no means apply to this country.”79

78
Hamilton 78. (Emphasis added).
79
The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 10; Vol. 4, Art. 3, Sec. 2,
Cl. 1, Doc. 22: Storing, Herbert J., ed. The Complete Anti-Federalist, 2.9.186–93. 7
vols. Chicago: University of Chicago Press, 1981 (“Brutus 15”).
33
Brutus spent considerable time articulating the some familiar pressures on
English judges stemming from their relationship with the Crown:
While the judges held their places at the will and pleasure of the king,
on whom they depended not only for their offices, but also for their
salaries, they were subject to every undue influence. If the crown
wished to carry a favorite point, to accomplish which the aid of the
courts of law was necessary, the pleasure of the king would be signified
to the judges. And it required the spirit of a martyr, for the judges to
determine contrary to the king’s will.—They were absolutely
dependent upon him both for their offices and livings.80
A King rules for life, with title bequeathed hereditarily—thus, judges
appointed by the king were given office for life as a balance to these interests of the
King. In America, judges are appointed by the legislature and executive, both
serving in office for a term of years. This fundamental distinction, according to
Brutus, poses fundamental problems for the blanket extension of English
protections in America:
The king, holding his office during life, and transmitting it to his
posterity as an inheritance, has much stronger inducements to
increase the prerogatives of his office than those who hold their offices
for stated periods, or even for life. Hence the English nation gained a
great point, in favour of liberty. When they obtained the appointment
of the judges, during good behaviour, they got from the crown a
concession, which deprived it of one of the most powerful engines with
which it might enlarge the boundaries of the royal prerogative and
encroach on the liberties of the people. But these reasons do not apply
to this country, we have no hereditary monarch; those who appoint the
judges do not hold their offices for life, nor do they descend to their
children. The same arguments, therefore, which will conclude in favor
of the tenor of the judge’s offices for good behaviour, lose a considerable
part of their weight when applied to the state and condition of
America.81
80
Id.
81
Id.
34
But not all observers agreed with the notion that America’s status as a
Republic lessened the need for the English-style guarantees of personal
independence for judges. St. George Tucker argued that in fact, the protections
offered by personal independence for judges were just as necessary in a Republic as
they were in a Monarchy.
This absolute independence of the judiciary, both of the executive and

the legislative departments, which I contend is to be found, both in the
letter, and spirit of our constitutions, is not less necessary to the liberty
and security of the citizen, and his property, in a republican
government, than in a monarchy: if in the latter, the will of the prince
may be considered as likely to influence the conduct of judges created
occasionally, and holding their offices only during his pleasure, more
especially in cases where a criminal prosecution may be carried on by
his orders, and supported by his influence; in a republic, on the other
hand, the violence and malignity of party spirit, as well in the
legislature, as in the executive, requires not less the intervention of a
calm, temperate, upright, and independent judiciary, to prevent that
violence and malignity from exerting itself “to crush in dust and ashes”
all opponents to it’s tyrannical administration, or ambitious projects.
Such an independence can never be perfectly attained, but by a
constitutional tenure of office, equally independent of the frowns and
smiles of the other branches of the government.82
Stated differently, removing the King did not not ameliorate the need for
complete personal independence for judges, as removing the King from the equation
only made room for the pernicious threats of factionalism, sectionalism, and politics
generally to fill his place. Thus, according to such arguments, insulating the
judiciary from the whims of the political branches in America was just as necessary
as insulating the judiciary from any undue influence of the King.

82
The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 26: Tucker, St. George.
Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of
the Federal Government of the United States and of the Commonwealth of Virginia.
5 vols. Philadelphia, 1803. Reprint. South Hackensack, N.J.: Rothman Reprints,
1969.
35
Alexander Hamilton articulated a similar argument.
In a monarchy it is an excellent barrier to the despotism of the prince:

In a republic it is a no less excellent barrier to the encroachments and
oppressions of the representative body. And it is the best expedient
which can be devised in any government, to secure a steady, upright
and impartial administration of the laws.83
2. Peculiar Dangers of Life Tenure in America’s

Constitutional Order.
In addition to guaranteeing personal independence of judges, the
Constitution also created a wholly-independent Judicial Branch. Unlike in England,
where the courts were largely nested within other departments, the Federal judicial
branch was instantiated to stand on its own. In England, the House of Lords sat
above the courts, empowering the Legislative to oversee the decisions of the courts.
The Framers rejected such a framework. No such structure of oversight of the
courts exist in the Constitution and thus the Federal Courts—specifically the
Supreme Court—have no authority above them to control their decisions.
For thinkers like Brutus, this lack of control or influence over the Federal
Judiciary, when combined with their constitutionally-guaranteed personal judicial
independence created a tremendous threat to the long-term viability of the
Constitutional American order.
I do not object to the judges holding their commissions during good

behaviour. I suppose it a proper provision provided they were made
properly responsible. But I say, this system has followed the English
government in this, while it has departed from almost every other
principle of their jurisprudence, under the idea, of rendering the judges
independent; which, in the British constitution, means no more than
83
The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 11: Hamilton,
Alexander; Madison, James; and Jay, John. The Federalist, 521–30. Edited by Jacob
E. Cooke. Middletown, Conn.: Wesleyan University Press, 1961 (“Hamilton 78”).
36
that they hold their places during good behavior, and have fixed
salaries, they have made the judges independent, in the fullest sense of
the word. There is no power above them, to controul any of their
decisions. There is no authority that can remove them, and they cannot
be controuled by the laws of the legislature. In short, they are
independent of the people, of the legislature, and of every power under
heaven.84
Despite the Anti-Federalists losing the battle over the constitution—Brutus’s
arguments would continue to live on. As will be seen in Section D, Thomas Jefferson
continued making similar arguments almost until his death.
3. Practical Arguments against Life Tenure during Good

Behavior.
Not all opponents of American-style judicial independence couched
their opposition to the concept in terms of deeply-considered constitutional theory.
Many simply made the practical argument that removing inane or insane judges
makes perfectly good sense; and the argument for complete,
constitutionally-required judicial independence systemically fails when considering
individual judges. Being insane or inane is not a crime—much less a high crime or
misdemeanor—and therefore bad judges will be allowed to be bad judges until they
die, retire, or commit an actual high crime or misdemeanor.
Brutus explains the difficulties posed by this constitutional requirement
when it comes to individually-incompetent judges.
Errors in judgement, or want of capacity to discharge the duties of the

office, can never be supposed to be included in these words, high crimes
and misdemeanors. A man may mistake a case in giving judgment, or
manifest that he is incompetent to the discharge of the duties of a
judge, and yet give no evidence of corruption or want of integrity. To
support the charge, it will be necessary to give in evidence some facts
84
Brutus 15.
37
that will shew, that the judges commited the error from wicked and
corrupt motives.85
Whether wicked or merely wanting of capacity, the effects of either are the
same: a miscarraige of justice. Whenever a judge rules incorrectly, whether due to
corruption or due to insanity—the fact remains, the judge has ruled incorrectly.
Others argued that the constitutional provisions requiring a two-thirds vote
of the legislature for the removal of Federal judges posed a severe limitation on the
practical possibility of removal, essentially ensuring no judges would ever be
removed—even for bad behavior. As Thomas Jefferson explained:
Before the revolution we were all good English Whigs, cordial in their
free principles, and in their jealousies of their executive Magistrate.
These jealousies are very apparent in all our state constitutions; and,
in the general government in this instance, we have gone even beyond
the English caution, by requiring a vote of two thirds in one of the
Houses for removing a judge; a vote so impossible where any defence is
made, before men of ordinary prejudices & passions, that our judges
are effectually independent of the nation.86
Jefferson also argued that giving judges life tenure, during good behavior,
with fixed salaries itself was not properly counterweighted—as mere promises to
appoint ‘good men’ to the bench does nothing in reality to combat the threat posed
by life appointments.
It is not enough that honest men are appointed judges. All know the
influence of interest on the mind of man, and how unconsciously his
judgment is warped by that influence. To this bias add that of the
esprit de corps, of their peculiar maxim and creed that “it is the office
of a good judge to enlarge his jurisdiction,” and the absence of
85
Brutus 15.
86
The Founders’ Constitution, Vol. 1, Chap. 8 (Federal v. Consolidated
Government), Doc. 44: The Works of Thomas Jefferson, 1:120–23. Collected and
edited by Paul Leicester Ford. Federal Edition. 12 vols. New York and London: G. P.
Putnam’s Sons, 1904–05.
38
responsibility, and how can we expect impartial decision between the
General government, of which they are themselves so eminent a part,
and an individual state from which they have nothing to hope or fear.87
To Jefferson, it was quite simple. America institutionalizes maniacs, and
therefore America ought to be able to remove bad judges from the bench; whether
the judges erred intentionally or not.
I repeat that I do not charge the judges with wilful and ill- intentioned
error; but honest error must be arrested where it’s toleration leads to
public ruin. As, for the safety of society, we commit honest maniacs to
Bedlam, so judges should be withdrawn from their bench, whose
erroneous biases are leading us to dissolution. It may indeed injure
them in fame or in fortune; but it saves the republic, which is the first
and supreme law.88
In response to those wishing to remove justices from the bench due to a want
of capacity, supporters of the good behavior standard argued it was impossible to
determine with any certainty where to draw the line with respect to diminished
capacity. Allowing the removal of judges due to their cognitive decline or
insufficiency would open pandora’s box—for making an objective determination on
the status of a person’s mental facilities was simply impossible. Thus, the standard
for removal would become subjective, which then puts judges right back into the
compromised position that life tenure, good behavior, and irreducible salaries were
intended to preclude. As Joseph story explains:
A proposition of a more imposing nature was to authorize a removal of

judges for inability to discharge the duties of their offices. But all
considerate persons will readily perceive, that such a provision would
either not be practised upon, or would be more liable to abuse, than
calculated to answer any good purpose. The mensuration of the
87
Id.
88
Id.
39
faculties of the mind has no place in the catalogue of any known art or
science. An attempt to fix the boundary between the region of ability
and inability would much oftener give rise to personal, or party
attachments and hostilities, than advance the interests of justice, or
the public good. And instances of absolute imbecility would be too rare
to justify the introduction of so dangerous a provision.89
Alexander Hamilton made a similar argument, that including the power to
remove senile or incompetent justices would essentially result in arbitrary removal
of judges and undo all concepts of judicial independence.
The mensuration of the faculties of the mind has, I believe, no place in

the catalogue of known arts. An attempt to fix the boundary between
the regions of ability and inability, would much oftener give scope to
personal and party attachments and enmities, than advance the
interests of justice, or the public good. The result, except in the case of
insanity, must for the most part be arbitrary; and insanity without any
formal or express provision, may be safely pronounced to be a virtual
disqualification.90
Thus constituted the main debate over removing federal judges. This debate
would continue from the calling of the Constitutional Convention through to the
War of 1812.
D. Failed Efforts to Add Removal of Justices to the Constitution.

The forces calling for a constitutional mechanism to remove federal judges
would make multiple efforts to add this concept into the constitution during the
first decades of the American Republic. The delegates to the Constitutional
Convention were the first to take up the issue, as they repeatedly considered
whether to add provisions to the Constitution making members of the Federal
Judiciary removable beyond impeachment, either by the executive, legislature, or
89
90
Hamilton 78.
40
some combination thereof. The creation of the Federal Judiciary did not progress
linearly at the Convention. Multiple drafts of provisions detailing the appointment
process were presented and considered throughout the Convention—and the earlier
drafts did not mention nor consider any provisions for the removal of justices.91
By mid-August 1787, however, the delegates to the Constitutional Convention
began to seriously consider provisions allowing for the removal of Federal judges
outside of the impeachment context. On August 27, John Dickinson of Pennsylvania
moved for the addition of a provision which would make members of the Federal
Judiciary removable by the President on application to the House and Senate.92
Elbridge Gerry of Massachusetts seconded the motion93, with Roger Sherman of
Connecticut arguing in its favor by pointing out England had a very similar
procedure for the removal of judges.94
Among the opponents of this provision were Gouvernor Morris of New York,
Edward Rutledge of South Carolina, and James Wilson of Pennsylvania. Gouvernor
Morris found that such a removal provision would be incompatible with the good
behavior standard—because then in theory, the good behavior clause was rendered
a nullity if the political branches could remove judges for reasons other than bad
behavior.95 Edward Rutledge argued because the Supreme Court would be the
arbiter between the United States government and the several states, making
Supreme Court justices removable by the Federal government potentiated the

91
Judicial Tenure, at 149.
92
Id., at 150.
93
Id.
94
Id.
95
Id.
41
Federal government unduly swaying the court against the States.96 James Wilson
was convinced that the House and Senate would collude to remove
politically-problematic judges.97
Ultimately, Dickinson’s motion failed at the Convention, with only one state
supporting the motion, seven voting against it, and with three state abstentions.98, 99
But this vote at the convention did not end the debate, and by the
revolution of 1800, Thomas Jefferson and his Democratic allies sought to remove
the so-called Midnight Judges. After Thomas Jefferson defeated John Adams in the
1800 presidential election, Adams and his Federalist Allies used the lame-duck
period of his presidency to appoint as many new justices of the peace as possible
before Jefferson became President to frustrate his term in office.100 The last-minute
nature of these appointments, however, lead to some of the commissions never
making their way physically to those selected for the role—and when Thomas
Jefferson became president, he ordered his new administration to bury these
commissions.101
One of the appointees who subsequently barred from receiving their
commission, William Marbury, sued for his commission—and the Supreme Court
handed down one of the Court’s landmark cases. Chief Justice John Marshall’s
opinion in Marbury v. Madison is a complex, intricate case which among other

96
Id.
97
Id.
98
Id.
99
Story, Commentaries on the Constitution, §1616.
100
See After Midnight: The Circuit Judges and the Repeal of the Judiciary Act of
1801, 24 Y ALE J.L. & HUMAN. 253.
101
Id.
42
things, instantiated the Constitution’s superiority over mere acts of the legislature
in addition to cementing the concept of Judicial review into the American
constitutional order.
Specifically, Marbury considered whether the Executive Branch could deny
judicial appointees their commissions—commissions created by duly-enacted
legislation and signed by a former President—by executive action. Chief Justice
Marshall wasted no time in declaring such actions by the President to be void.
Where an officer is removable at the will of the executive, the

circumstance which completes his appointment is of no concern;
because the act is at any time revocable; and the commission may be
arrested, if still in the office. But when the officer is not removable at
the will of the executive, the appointment is not revocable, and cannot
be annulled: it has conferred legal rights which cannot be resumed.
The discretion of the executive is to be exercised, until the appointment
has been made. But having once made the appointment, his power over
the office is terminated, in all cases where, by law, the officer is not
removable by him. The right to the office is then in the person
appointed, and he has the absolute unconditional power of accepting or
rejecting it.
Mr. Marbury, then, since his commission was signed by the president,
and sealed by the secretary of state, was appointed; and as the law
creating the office, gave the officer a right to hold for five years,
independent of the executive, the appointment was not revocable, but
vested in the officer legal rights, which are protected by the laws of his
country. To withhold his commission, therefore, is an act deemed by the
court not warranted by law, but violative of a vested legal right.102
Because the Congress created five-year tenure for these judicial offices (and
in the absence of statutory authorization for removal by the executive) the executive
was powerless to divest those officeholders of their commissions.
102
The Founders’ Constitution, Vol. 4, Art. 3, Sec. 2, Cl. 1, Doc. 47.
43
Thus in so doing, Chief Justice Marshall slammed the door shut on a
potential extra-constitutional avenue for the other branches of the Federal
Government to interfere with the tenures of judicial appointees. Unless authorized
to remove such judicial appointees at will, the President is powerless to terminate
their vested legal right to hold office prior to the expiration of the office. With the
constitutional command that members of the Federal Judiciary hold their offices
during good behavior, then, under Marbury, it should be clear that no Executive
could effectively remove a duly-appointed justice by withholding the delivery of
their commission—or by means of any other procedural gadgets which might be
subsequently invented to effectuate the same.
After Marbury, one final attempt to amend the constitution to allow the
removal of Federal judges was made. In 1811, Maryland Congressman Robert
Wright proposed a constitutional amendment in the Congress allowing for the
removal of Federal Justices by joint address of the House and Senate. Like other
such efforts, Congressman Wright’s amendment died with a whimper.
Mr. Wright called for the consideration of the resolution submitted by

him on Wednesday last, in the following words:
Resolved, by the Senate and House of Representatives of the United

States of America, in Congress assembled, two-thirds of both Houses
concurring, That the following section be submitted to the Legislatures
of the several States; which, when ratified by the Legislatures of three-
fourths of the States, shall be valid and binding as a part of the
Constitution of the United States:
“The Judges of the Supreme Court and inferior courts, may be removed
from office by the joint address of the Senate and House of
Representatives of the United States.”
44
Mr. W. wished it considered barely with a view to a reference to a
Committee of the Whole, and to make it the order of the day for some
distant day.
The House refused to consider the resolution; 53 to 38.103
Though the failure of Mr. Wright’s Amendment marked the last serious
attempt to constitutionally allow for the removal of Federal judges, dissenters
remained. In his 1821 autobiography, Thomas Jefferson lamented the failure to
include a constitutional means to remove Federal judges.
But there was another amendment of which none of us thought at the

time and in the omission of which lurks the germ that is to destroy this
happy combination of National powers in the General government for
matters of National concern, and independent powers in the states for
what concerns the states severally.104
Jefferson was certainly aware of the theoretical support for the independence
of the judiciary, but argued that additional modest controls over Federal judges
were necessary.
I would not indeed make them dependant on the Executive authority,

as they formerly were in England; but I deem it indispensable to the
continuance of this government that they should be submitted to some
practical & impartial controul: and that this, to be imparted, must be
compounded of a mixture of state and federal authorities.105
Thomas Jefferson was gravely concerned that with the failure to implement
controls over the Federal Judiciary, the judiciary would do what all powerful bodies
tend to do—accumulate more power. Such accumulations of power are dangerous in
and of themselves, but under the Federal Constitution, these accumulations would
103
The Founders’ Constitution, Vol. 4, Art. 3, Sec. 1, Doc. 31: Annals of Congress.
The Debates and Proceedings in the Congress of the United States, 22:857. “History
of Congress.” 42 vols. Washington, D.C.: Gales & Seaton, 1834–56.
104
Jefferson Biography.
105
Id.
45
directly threaten the States. And without the ability to remove justices guilty of
such behavior, there would be no constitutional mechanism to avert this disaster.
Jefferson’s lament, therefore, is a strong echo of Brutus—good behavior, life tenure,
and fixed salaries are fantastic, but with America’s complete constitutional judicial
independence, the judges could not be stopped should they begin to undermine the
American Constitutional order.
To this bias add that of the esprit de corps, of their peculiar maxim and
creed that “it is the office of a good judge to enlarge his jurisdiction,”
and the absence of responsibility, and how can we expect impartial
decision between the General government, of which they are
themselves so eminent a part, and an individual state from which they
have nothing to hope or fear. We have seen too that, contrary to all
correct example, they are in the habit of going out of the question
before them, to throw an anchor ahead and grapple further hold for
future advances of power. They are then in fact the corps of sappers &
miners, steadily working to undermine the independant rights of the
States, & to consolidate all power in the hands of that government in
which they have so important a freehold estate.106
Thomas Jefferson would die five years after the publication of his
Autobiography, and so he did not live long enough to see how closely his predictions
presaged the contours of American Legal History.
IV. Conclusion.
Had these two ill-fated efforts to fundamentally alter America’s constitutional
order been successful it is clear the development of American law and government
would have taken a radically different trajectory. Had the Constitutional
Convention supported the Council of Revision, the entire history of judicial review
and the relationship between the three branches of American government would
have necessarily diverged from the record. No longer would the Supreme Court be
106
Id.
46
relegated to a ‘wait and see’ position when it comes to adjudicating constitutional
issues related to legislation, and instead the Council of Revision would have allowed
an active, preemptive strike against unconstitutional legislation. How this
difference would play out in more legally fraught modern times is impossible to
know.
What we do know, however, is that the winning argument at the
Constitutional Convention cemented the importance of the Presidential veto and
judicial review. The Convention Delegates were of the opinion that those two checks
on the legislature originating separately in the executive and judicial branches were
sufficient checks against legislative overreach. Perhaps it is the case that these two
checks are in fact the best two, and that the Council of Revision would have only
increased the tension within the system or been relegated to irrelevance.
With respect to efforts to allow the constitutional removal of Federal judges,
it is clear the prevailing view of the Founders has played a significant role in the
development of America’s Constitutional Order. Would Thomas Jefferson and the
Democratic-Republicans have sought to remove John Marshall from the Federal
Bench after Marbury? Would Andrew Jackson have done the same in a later
decade? Is it possible that in the wake of Dred Scott the national mood would have
soured against Rodger Tawney and caused him to be removed, potentially avoiding
the Civil War? Would the ‘Switch in Time’ have simply been effectuated by FDR by
removing Federal judges problematic for the implementation of the New Deal?
47
As with the Council of Revision, it is impossible to know how the inclusion of
a constitutional mechanism to remove Federal judges would have played out. These
thought experiments are interesting to undertake, but one thing remains clear—by
leaving the appointees to the Federal Courts beyond recall of the political branches,
significant constitutional crises between branches did not result in Legislative and
Executive domination of the Judicial. Perhaps such domination would have been
inevitable, and the current system of Judicial Review and Supremacy was the only
path available to prevent the same.
Despite these (and many other) unanswered questions of alternative history
raised by the Council of Revision and removal of Federal judges, it is clear that
these two rejected Constitutional revisions were not anti-constitutional theoretical
heresies. No, both proposals derived from substantial English and American
traditions and were borne out of the very same set of thinkers, principles, and
compromises that gave us our current Constitution and should be remembered as
such.
48

Left On The Cutting Room Floor: Two Failed Efforts To Change The American Judiciary's Constitutional Form and Function

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Left On The Cutting Room Floor: Two Failed Efforts To Change The American Judiciary's Constitutional Form and Function

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Left on the Cutting Room Floor:

By: Zachary Werrell

government to Ratification of the Constitution and subsequent amendments, the

American Constitution has synthesized a vast array of principles, doctrines, and

structures into one. From the familiar principle of separation of powers, or

structural tripartite framework of the federal government, to more obscure

doctrines better enumerated in countless learned works—our Federal Constitution

embodies a variety of disparate ideas in a unified and coherent manner.

ideas were rejected for inclusion into the Constitution—whether due to

compromises, substitutions, or even flat-out losing on a vote at the convention.

were ultimately included and America’s constitutional order.

Constitution: the Council of Revision and removal of Federal judges by Congress

of Revision proposed by James Madison at the Constitutional Convention with the

IV will conclude with meditations on the subject.

II. The Counsel of Revision.

Constitutional Convention, Proposal Eight called for the creation of Council of

ultimately failed by a narrow margin at Convention despite spirited debate.

the Proposal and later reflections on the results of its rejection.

A. Proposal Eight of the Virginia Plan.

Confederation—the initial national governmental structure operating during the

Revolution and subsequently thereafter. Though the Convention almost

immediately embraced scrapping the Articles of Confederation and replacing it with

a new national Constitution, the delegates to the convention gathered intending to

fix the Articles. They brought—amongst others—structural, legal, and functional

None of the delegates to the Constitutional Convention came with an articulated,

comprehensive plan for a new constitution to replace—save James Madison.1

many of the innovations found in our current Constitution: a bicameral

in the Virginia Plan was adopted at the Constitutional Convention.

Proposal Eight of James Madison’s Virginia Plan is one such rejected

proposal. It called for the creation of a Counsel of Revision; a quasi-Judicial body

with the power to declare bills in any legislature—State or Federal—null subject to

firmly grounded in constitutional theory. Thus, before detailing Proposal Eight’s

theoretical origins of the Counsel of Revision.

B. Theoretical and Historical Origins of The Council of Revision.

based firmly in both English jurisprudence and Revolutionary American practice, as

and oversaw much of the judiciary.6

Meanwhile, the Parliament in England had begun to grow in both its

Council to a largely powerless role with respect to Parliamentary legislation.7

Nonetheless, the Privy Council remained influential and consequential

Council had in Ireland’s lawmaking:

The method made use of in Ireland, as stated by sir Edward Coke, of

Crown—their decision was final and determinative on the issue.

Irish; though it followed different contours. In 1696, to manage the increasingly

complex and demanding task of reviewing and adjudicating Empire-wide

legislatures in theory—it exerted this power with regularity in the American

Subversive of those established Principles of the Constitution.”12

intermeddling in their affairs, such was not the case.

2. New York’s Council of Revision.

new state constitution—which included a provision creating what would come to be

power out of one man’s hand.

As enacted, Section III of the New York Constitution read:

And whereas laws inconsistent with the spirit of this constitution, or

In essence, the New York’s Council of Revision is a novel variation of the

striking down—legislation. In effect, the New York Constitution divested the

reconsideration, with the legislature overriding the council and repassing

51—adopting 26 with various degrees of modification.16

constitutional reasoning—declaring the bill rejected as “inconsistent with the Spirit

of the Constitution.”17 Other rejections came on procedural grounds, with the

an opportunity of being heard.”18 Sometimes, the Council of Revision would offer

also exerted its powers to advance procedural and policy goals.

Council and its general reputation in Federalist 73:

This qualified negative, as has been elsewhere remarked, is in this

developing Proposal Eight’s Council of Revision. Despite posing a potential